n 


I 0 


L'BRAR 


Ju&irial  &?ttlraent 

of  Snternaitnnal  Stsputca 


©Ijc  Smportmtrr  of  iDufrtrial 


bH 

Eltlju  Snot 

Unttril  Stafra  Senator  from  Stem  tjorh 


FEBRUARY,  1911,  No.  3 


Published  Quarterly  by  American  Society  for  Judicial  Settlement 
of  International  Disputes. 


Salttmnre,  U.  §.  A. 


Entered  a3  sec 
the  Postoffice  at 
July  16,  189E 


KZ 

4850 

.J835 

no.3 


ily  11,  1910,  at 
der  the  Act  o i 


®h?  important?  of  iubxnal  ^rttlrmrnt 
iElitju  Snot 

We  all  of  us  agree,  and  a very  large  part  of 
the  world  agrees,  that  there  ought  to  be  an 
end  to  war,  that  it  is  brutal,  wasteful  and 
stupid.  We  have  been  talking  about  it  for  a 
great  many  years.  The  volume  of  sound  has 
swelled  and  grown  into  a great  chorus  of  uni- 
versal acclaim  for  the  principles  of  peace  with 
justice. 

But  all  great  movements  have  a definite 
development.  They  pass  from  stage  to  stage. 
The  declaration  of  principles  in  the  beginning 
is  but  the  first  step,  and  the  method  of  devel- 
opment is  from  the  general  to  the  particular, 
from  the  theoretical  to  the  practical,  from  the 
proposal  to  the  accomplishment. 

Now,  the  movement  for  peace,  for  the  set- 
tlement of  the  disputes  of  mankind  by  peace- 


3 


ful  means,  is,  it  seems  to  me,  passing  from 
one  stage  to  another  in  these  wonderful 
years  in  which  we  live.  Having  accumulated 
enough  momentum,  by  means  of  the  mis- 
sionary work  that  has  been  done,  by  means 
of  the  propaganda  which  has  been  prosecuted, 
we  are  beginning  now  to  pass  into  the  stage 
of  careful,  thoughtful,  definite,  certain  inquiry 
into  the  specific  causes  of  war  and  the  specific 
remedies  to  be  applied.  So  only  can  progress 
be  made  towards  a practical  conclusion. 

The  organization  of  this  Society  is  one  of 
the  great  steps  forward  in  this  second  stage 
of  development  of  the  world-wide  peace  move- 
ment. 

The  causes  of  war  may  be  roughly,  and  of 
course  superficially  and  generally  distributed 
into  three  categories.  First,  there  are  the 
real  differences  between  nations  as  to  their 
respective  rights.  One  nation  claims  terri- 
tory and  another  claims  the  same  territory. 
One  nation  claims  the  right  to  trade  in  a 
particular  way,  at  a particular  place,  and 
another  nation  claims  an  exclusive  right. 
There  are  a myriad  ways  in  which  nations 
may  come  into  dispute  regarding  real  rights, 


4 


each  nation  believing  that  its  side  of  the  con- 
troversy is  based  upon  justice. 

A second  category  is  what  I might  call  that 
of  policy.  The  policy  of  a country  may  be  to 
push  its  trade,  to  acquire  territory,  to  obtain 
a dominant  influence,  to  insist  upon  a certain 
course  of  action  by  other  countries  for  its  own 
protection  asserting  that  a different  course  of 
conduct  would  be  dangerous  to  its  safety. 
All  those  questions  of  policy,  however,  are  to 
a considerable  degree,  and  very  frequently, 
dependent  upon  the  determination  of  certain 
facts  and  the  decision  of  certain  questions  of 
international  law. 

A third  category  of  causes  of  war  may  be 
described  as  being  matters  of  feeling.  Deep 
and  bitter  feeling  is  often  awakened  between 
peoples  of  different  countries.  We  have  got 
away  from  the  time  when  the  pique  or  whim 
of  an  individual  monarch  may  plunge  his  sub- 
jects into  a bloody  and  devastating  war,  but 
we  remain  in  the  time  when  great  masses  of 
people  in  different  countries  may  become  in- 
dignant over  some  slight  or  insult,  or  a course 
of  conduct  which  they  deem  to  be  injurious 
and  unfair.  These  matters  of  feeling,  which 


5 


are  the  most  dangerous  of  all  causes  of  war 
because  they  make  the  peoples  of  two  dif- 
ferent countries  want  to  fight, — these  matters 
of  feeling  ordinarily  depend  in  the  beginning 
upon  different  views  regarding  the  specific 
rights  of  the  two  countries. 

Now,  as  to  the  first  kind  of  causes  of  war, 
the  real  controversies  about  rights,  it  is  plain 
that  they  ought  to  be  decided,  and  that  all 
war  based  upon  them  may  easily  be  obviated 
by  having  them  decided,  in  accordance  with 
the  rules  of  right  reason. 

As  to  the  two  other  classes  of  reasons  for 
war,  it  is  plain  that  the  little  beginnings  out 
of  which  they  arise,  the  excuses  upon  which 
they  depend,  may  also  be  disposed  of  if  taken 
in  time,  and  disposed  of  by  reason  and  kindly 
consideration.  So  that  while  it  does  not 
cover  the  whole  ground,  while  it  does  not  by 
any  means  solve  the  whole  question,  yet  at 
the  bottom  of  all  the  attempts  practically  to 
dispose  of  the  causes  of  war,  lies  the  peace- 
able decision  of  questions  of  fact  and  law  in 
accordance  with  the  rules  of  justice. 

Now  we  have  been  for  a good  many  years 
more  and  more  seeking  to  accomplish  that  by 


6 


means  of  arbitration,  and  the  machinery  for 
arbitration  has  been  carefully  devised  and 
agreed  upon  by  the  nations  of  the  earth  at 
the  two  successive  Hague  conferences,  so 
that  it  is  comparatively  easy  for  nations  to 
have  recourse  to  that  method  of  settling  their 
disputes. 

But  there  are  some  difficulties  about  arbi- 
tration, practical  difficulties  in  the  way  of 
settling  questions.  I have  said  many  times 
and  in  many  places  that  I do  not  think  the 
difficulty  that  stands  in  the  way  of  arbitra- 
tion today  is  an  unwillingness  on  the  part  of 
the  civilized  nations  of  the  earth  to  submit 
their  disputes  to  impartial  decisions.  I think 
the  difficulty  is  a doubt  on  the  part  of  civilized 
nations  as  to  getting  an  impartial  decision. 
And  that  doubt  arises  from  some  character- 
istics of  arbitral  tribunals  which  are  very  dif- 
ficult to  avoid. 

In  the  first  place,  these  tribunals  are  ordi- 
narily made  up  by  selecting  publicists,  men  of 
public  affairs,  great  civil  servants,  members 
of  the  foreign  offices,  men  trained  to  di- 
plomacy; and  the  inevitable  tendency  is,  and 
the  result  often  has  been,  in  the  majority  of 


7 


cases  has  been,  that  the  arbitral  tribunal 
simply  substitutes  itself  for  the  negotiators  of 
the  two  parties,  and  negotiates  a settlement. 
Well,  that  is  quite  a different  thing  from  sub- 
mitting your  views  of  right  and  wrong,  your 
views  of  the  facts  and  the  law  on  which  you 
base  your  claims  to  right,  to  the  decision  of  a 
tribunal,  of  a court.  It  is  merely  handing 
over  your  interests  to  somebody  to  negotiate 
for  you;  and  there  is  a very  widespread  re- 
luctance to  do  that  in  regard  to  many  cases; 
and  the  nearer  the  question  at  issue  ap- 
proaches the  verge  of  the  field  of  policy,  the 
stronger  the  objection  to  doing  that. 

Another  difficulty  is  that  the  arbitral  tri- 
bunals, of  course  being  made  up  largely  of 
members  from  other  countries,  the  real  de- 
cision ordinarily  being  made  by  arbiters  who 
come  from  other  countries  and  not  from 
the  countries  concerned,  questions  have  to  be 
presented  to  men  trained  under  different  sys- 
tems of  law,  with  different  ways  of  thinking 
and  of  looking  at  matters.  There  is  a very 
wide  difference  between  the  way  in  which  a 
civil  lawyer  and  a common-law  lawyer  will 
approach  a subject,  and  it  is  sometimes  pretty 


8 


hard  for  them  to  understand  each  other  even 
though  they  speak  the  same  language,  while 
if  they  speak  different  languages  it  is  still 
more  difficult. 

Another  difficulty  is  that  a large  part  of  the 
rules  of  international  law  are  still  quite  vague 
and  undetermined,  and  upon  many  of  them, 
and  especially  upon  those  out  of  which  contro- 
versy is  most  likely  to  arise,  different  coun- 
tries take  different  views  as  to  what  the  law 
is  and  ought  to  be.  And  no  one  can  tell  how 
one  of  these  extemporized  tribunals,  picked 
at  haphazard,  or  upon  the  best  information 
the  negotiators  of  two  countries  can  get, — no 
one  can  tell  what  views  they  are  going  to 
take  about  questions  of  international  law,  or 
how  they  are  going  to  approach  subjects  and 
deal  with  them. 

Now,  it  has  seemed  to  me  very  clear  that 
in  view  of  these  practical  difficulties  standing 
in  the  way  of  our  present  system  of  arbitra- 
tion, the  next  step  by  which  the  system  of 
peaceable  settlement  of  international  disputes 
can  be  advanced,  the  pathway  along  which  it 
can  be  pressed  forward  to  universal  accept- 
ance and  use,  is  to  substitute  for  the  kind  of 


9 


arbitration  we  have  now,  in  which  the  arbi- 
trators proceed  according  to  their  ideas  of 
diplomatic  obligation,  real  courts  where 
judges,  acting  under  the  sanctity  of  the  ju- 
dicial oath,  pass  upon  the  rights  of  countries, 
as  judges  pass  upon  the  rights  of  individuals, 
in  accordance  with  the  facts  as  found  and  the 
law  as  established.  With  such  tribunals, 
which  are  continuous,  and  composed  of  judges 
who  make  it  their  life  business,  you  will  soon 
develop  a bench  composed  of  men  who  have 
become  familiar  with  the  ways  in  which  the 
people  of  every  country  do  their  business  and 
do  their  thinking,  and  you  will  have  a gradual 
growth  of  definite  rules,  of  fixed  interpreta- 
tion, and  of  established  precedents,  according 
to  which  you  may  know  your  case  will  be  de- 
cided. It  is  with  that  view  that  I have  felt 
grateful  to  the  gentlemen  who  have  been  giv- 
ing their  time  and  efforts  to  the  organization 
and  establishment  of  this  Society.  I am  sure 
that  it  is  a step  along  the  scientific  and  practi- 
cal method  of  putting  into  operation  all  the 
principles  that  we  have  been  preaching  and 
listening  to  for  so  many  years.  It  is  practi- 
cal, and  I believe  it  will  be  effective. 


10 


There  is  a great  deal  of  work  for  the  So- 
ciety to  do.  Our  people  here  in  the  United 
States  are  probably  more  ready  to  assent  to 
such  a view  as  this  than  the  people  of  any 
other  country  in  the  world,  because  we  have 
been  long  accustomed  to  the  existence  of  a 
great  tribunal,  a part  of  whose  duty  it  is  to 
sit  in  judgment  upon  the  question  whether 
the  governments  of  the  sovereign  States  and 
the  government  of  our  own  nation,  in  their 
acts,  conform  to  the  great  principles  of  justice 
and  right  conduct  embodied  in  our  Constitu- 
tion. That  arrangement,  of  embodying  the 
eternal  principles  of  justice  in  a written  instru- 
ment, investing  a court  with  the  power  to  de- 
clare all  acts  of  Congresses,  and  legislatures, 
and  Presidents  and  Governors,  void  and  of  no 
effect  when  they  fail  to  conform  to  those 
principles,  is,  it  seems  to  me,  the  greatest  con- 
tribution of  America  to  the  political  science  of 
the  world.  We  are  accustomed  to  seeing  the 
actions  of  the  men  who  hold  the  power,  the 
actions  of  the  legislative  bodies  that  hold  the 
purse  strings,  submitted  to  the  adjudication  of 
the  court  which  has  no  power  to  enforce  its 
decrees,  except  the  confidence  of  the  whole 


people  behind  it.  We  are  accustomed  to  that, 
and  it  seems  natural  to  us  that  nations,  how- 
ever great,  and  rulers,  however  powerful, 
should  go  before  a court  and  submit  the  ques- 
tion whether  their  actions  and  their  views  ac- 
cord with  the  principles  of  justice.  But  it 
does  not  seem  so  to  most  of  the  world.  It  is 
rather  a new  idea,  and  it  will  take  time  and 
argument  and  exposition  to  bring  the  world 
in  general  to  the  acceptance  of  that  view. 
And  upon  that  long  pathway  this  Society  has 
entered.  A prosperous  voyage  to  it,  and  a 
safe  arrival ! 

I have  said  that  the  time  has  come  for  prac- 
tical dealing  with  specific  causes  and  specific 
remedies.  Do  not  understand  me  as  believing 
that  this  is  to  be  substituted  for  the  continu- 
ous and  unwearied  assertion  and  reassertion 
of  the  great  principles  upon  which  the  move- 
ment for  peace  and  justice  must  depend  in  all 
parts  and  in  every  phase.  For,  however  great 
may  be  the  material  wealth  and  power  of 
these  great  nations,  after  all,  what  rules  the 
world,  the  one  thing  that  is  eternal  and  all 
powerful,  is  the  intangible  and  the  senti- 
mental. 


12 


The  above  address  was  delivered  at  the  opening 
of  the  International  Conference  of  the  American 
Society  for  Judicial  Settlement  of  International  Dis- 
putes, Washington,  D.  C.,  December  15,  1910.  In 
introducing  the  speaker  the  presiding  officer,  James 
Brown  Scott,  said: 

For  centuries  it  was  the  plan  of  the  philosopher 
and  the  hope  of  the  philanthropist  that  some  means 
might  be  found  by  which  international  conflicts 
should  be  settled  peacefully  without  a resort  to 
arms,  and  the  dreamers  of  dreams,  philosophers  and 
philanthropists,  proposed  that  the  questions  at  issue 
between  nations  should  be  settled  either  in  confer- 
ence, in  diplomatic  assemblies  or  by  temporary 
tribunals  of  arbitration  created  for  the  express  pur- 
pose. That  which  the  dreamers  of  dreams  have 
dreamed,  and  the  philosophers  have  planned,  that 
which  the  philanthropists  saw  before  them  as  if  in 
a vision,  took  definite  form  and  shape  in  the  year 
1907,  when  our  accomplished  Secretary  of  State,  the 
Honorable  Elihu  Root,  instructed  the  American  dele- 
gation to  the  Second  Hague  Peace  Conference  to 
propose  a permanent  court  to  be  composed  of  judges 
who  should  act  under  a sense  of  judicial  responsi- 
bility, and  which  court  should  represent  the  various 
judicial  systems  of  the  world.  Pursuant  to  these 
instructions  the  delegation,  under  the  leadership  of 
the  Honorable  Joseph  H.  Choate,  introduced  such 
a proposition,  and  after  weeks  of  discussion  and 
debate  the  Conference  adopted  a draft  convention 
consisting  of  thirty-five  articles  for  the  organization, 
the  jurisdiction  and  the  procedure  of  a permanent 
court  of  arbitral  justice,  leaving  it,  however,  to  the 
nations  to  constitute  the  court,  through  diplomatic 
channels,  when  an  agreement  should  be  reached 
upon  the  appointment  of  the  judges. 


13 


Ammrart  Sorirtg  far  Juiiirial  Srltlramtl  of 
Urtlrrnatunial  SiEpntrs. 

©hirers 

Honorary  President,  William  Howard  Tart. 

President,  James  Brown  Scott, 

Washington,  D.  C. 

Vice-President,  John  Hays  Hammond, 
Washington,  D.  C. 

Secretary,  Theodore  Marburg, 

Baltimore,  Md. 

Treasurer,  J.  G.  Schmidlapf, 

Cincinnati,  Ohio. 

Life  membership,  Sioo;  Sustaining  membership,  $10  a year; 
Annual  membership,  $i  a year. 

Remit  to  treasurer,  J.  G.  Sclunidlapp,  Cincinnati,  U.  S.  A.  Address 
inquiries  to  secretary,  Theodore  Marburg,  Baltimore,  U.  S.  A. 

The  proceedings  of  the  "Judicial  Settlement’’  Conference  at 
Washington,  December  15-17,  1910,  will  be  printed  in  English, 
French,  German  and  Spanish.  Each  member  of  the  Society  will 
be  entitled  to  one  copy.  Non-members  may  procure  them  by 
remitting  the  price.  One  Dollar,  to 

TUNSTALL  SMITH,  Assistant  Secretary, 

The  Preston,  Baltimore,  U.  S.  A. 


Amrrimi  §nrirta  fur  JuMrial  ©rttirmrnJ  of 
3nlrrnaticnal  Sispirtra. 

Aiimsnrg  (Ennwil 

Lyman  Abbott,  New  York. 

Edwin  A.  Alderman,  Virginia. 

James  B.  Angei.l,  Michigan. 

R.  L.  Baden,  Ottawa,  Ont. 

Simeon  E.  Baldwin,  Connecticut. 

Richard  Bastholdt,  Missouri. 

Alexander  Graham  Bell,  Washington,  D.  C. 
Theodore  E.  Burton,  Ohio. 

Joaquin  D.  Casasus,  Mexico  City,  Mexico. 

George  E.  Chamberlain,  Oregon. 

Winston  Churchill.  New  Hampshire. 

George  B.  Cutten,  Wol frill e,  N.  S. 

William  R.  Day,  Ohio. 

Jacob  M.  Dickinson,  Washington,  D.  C. 

Andrew  S.  Draper,  New  York. 

Charles  W.  Eliot,  Massachusetts. 

Charles  E.  Fenner,  Louisiana. 

William  Dudley  Foulke,  Indiana. 

James  Ordinal  Gibbons,  Maryland. 

George  Gray,  Delaware. 

Charles  Noble  Gregory,  Iowa. 

Peter  S.  Grosscup,  Illinois. 

Joseph  F.  Johnston,  Alabama. 

David  Starr  Jordan,  California. 

Harry  Pratt  Judson.  Illinois. 

William  H.  King,  Utah. 

George  W.  Kirchwey,  New  York. 

Philander  C.  Knox.  Washington,  D.  C. 

Charles  F.  Libby,  Maine. 

Francis  B.  Loomis,  Washington,  D.  C. 

Horace  H.  Lurton,  Tennessee. 

R.  McBride,  Victoria,  B.  C. 

Pablo  Macedo,  Mexico  City,  Mexico. 

Charles  Marcil,  Ottawa,  Ont. 

Sidney  E.  Mezes,  Texas. 

S.  C.  Mitchell,  South  Carolina. 

Francis  G.  Newlands,  Nevada. 

L.  Oppeneeim,  Cambridge,  England. 

Thomas  Nelson  Page,  Washington,  D.  C. 
Walter  EL  Page,  New  York. 

W.  Peterson,  Montreal. 

Sir  Thomas  Raleigh,  London,  England. 
Whitelaw  Reid,  London,  England. 

Willlam  Renwick  Riddell,  Toronto,  Ont. 

Uriah  M.  Rose,  Arkansas. 

A.  C.  Rutherpord,  Edmonton,  Alberta. 

Walter  Scott,  Regina,  Saskatchewan. 

Albert  Shaw,  New  York. 

Hoke  Smith,  Georgia. 

Bishop  Robe?.t  Strange,  North  Carolina. 

Sir  Charles  Hiebert  Tupper,  Vancouver,  B.  C, 
George  Turner,  Washington. 

Charles  R.  Van  Hiss,  Wisconsin. 

Benjamin  Ids  Wheeler,  California. 

Willlam  Allen  White.  Kansas. 

George  G.  Wilson,  Rhode  Island. 

Prince  di  Cassano,  Italy. 


T> 


Publications  of  the  American  Society  for  Judicial 
Settlement  of  International  Disputes — 

1.  The  New  Era  of  International  Courts,  by 
Simeon  E.  Baldwin.  August,  1910. 

2.  The  Necessity  of  a Permanent  Tribunal,  by 
Ernest  Nys.  November,  1910. 

Supplement — The  American  Society  for  Judicial 
Settlement  of  International  Disputes,  by  James 
Brown  Scott.  November,  1910. 

3.  The  Importance  of  Judicial  Settlement,  by  Elihu 
Root.  February,  1911. 


The  Third  National  Peace  Congress  will  be  held 
in  Baltimore,  McCoy  Hall,  Johns  Hopkins  Uni- 
versity, May  3-5,  1911,  under  the  joint  auspices  of 
all  the  leading  societies  in  America  devoted  to  the 
cause  of  the  settlement  of  international  disputes 
by  means  other  than  war.  Noted  men  from  all 
parts  of  the  country  will  take  part  in  the  congress. 


X8Z2C9efrO 


sauEjqn  AiisjaAiun  e^ng 


